Nepal
The ITUC affiliates in Nepal are the All Nepal Federation of Trade Unions (ANTUF), the General Federation of Nepalese Trade Unions (GEFONT) and the Nepal Trade Union Congress (NTUC).
Legal
Freedom of association / Right to organise
Freedom of association
The right to freedom of association is enshrined in the Constitution.
The right to freedom of association is recognised by law but strictly regulated.
Anti-Union discrimination
The law prohibits anti-union discrimination, but does not provide adequate means of protection against it.
Barriers to the establishment of organisations
- Excessive representativity or minimum number of members required for the establishment of a union
- At enterprise level, the formation of a union requires 25% of the workforce and a minimum of ten people. The Registrar may refuse to register a union if these threshold are not reached (Art. 3 (4) and Art 7 (b) of the Trade Unions Act, 2049 (1992).
- Restrictions on trade unions’ right to establish branches, federation and confederation or to affiliate with national and international organisations
- Trade union federations can be formed through the association of 50 company unions, or of 5,000 individuals working in enterprises of the same nature. A confederation requires ten federations to join together, of which six must be from the formal economy. In the informal economy, 500 people in similar work are required in order to create a federation, whilst in agriculture a minimum of 5,000 workers are needed, covering at least 20 districts and with at least 100 people from each district (art. 4 to 7A of the Trade Unions Act 2049 (1992).
Restrictions on workers’ right to form and join organisations of their own choosing
- Single trade union system imposed by law and/or a system banning or limiting organising at a certain level (enterprise, industry and/or sector, regional and/or territorial, national)
- A maximum of four unions are allowed per enterprise.
- Restrictions on workers’ right to join the trade union of their choosing imposed by law (i.e. obligation to join a trade union of a certain level e.g. enterprise, industry and/or sector, regional and /or territorial national)
- Art. 3 (5) Trade Union Act, 2049 (1992), as amended by the Trade Union (First Amendment) Act, 2055 (1999): “Registered of Enterprise Level Trade Union: (…) (5) No workers shall be eligible to be member of more than one Enterprise Level Trade Union at the same time
Restrictions on trade unions’ right to organise their administration
- Restrictions on the right to freely organise activities and formulate programmes
- Art. 30 Trade Unions Act, 2049 (1992), as amended by the Trade Union (First Amendment) Act, 2055 (1999): “Special Power of Government of Nepal: Government of Nepal may give necessary order or direction to restrict such activities of Trade Union or Trade Union Association or Trade Union Federation if the activity of the Trade Union seem, to create extra-ordinary situation thereby disturbing the peace and order or to go against the economic development of the country.”
- Administrative authorities’ power to unilaterally dissolve, suspend or de-register trade union organisations
- Under article 25(1)(c) of the Trade Unions Act, 2049 (1992), the Registrar is granted excessive powers to dissolve unions if "anything is done against this Act or the Regulation framed under this Act". In addition, under article 7A a union at enterprise level must be renewed every two years, while trade unions at higher levels and federations must be renewed every four years.
Categories of workers prohibited or limited from forming or joining a union, or from holding a union office
- Other civil servants and public employees
- The gazetted level civil servants engaged in the management of state affairs and senior level employees of public enterprises cannot exercise freedom of association (Art. 53 Civil Service Act, 2049 (1993).
- Non-national or migrant workers
- Non-Nepalese can be members of a union. However, only Nepalese nationals can be elected as trade union officials (Art. 10 (1) (e) Trade Unions Act, 2049 (1992).
- Managerial and supervisory staff
- Members of the management of private or public enterprises are not allowed to take part in union activities (Art. 2 (b) Trade Union Act, 2049 (1992), as amended by the Trade Union (First Amendment) Act, 2055 (1999).
Right to collective bargaining
Right to collective bargaining
The right to collective bargaining is enshrined in the Constitution.
The right to collective bargaining is recognised by law but strictly regulated.
Barriers to the recognition of collective bargaining agents
- Possibility to by-pass representative trade unions and bargain directly with workers’ representatives
- Article 116.1 of the Labour Act allows direct bargaining between the enterprise and its employees with a view to avoiding sufficiently representative organizations. Pursuant to this article, any enterprise employing ten or more workers shall have a collective bargaining committee that may submit collective claims or demands in writing to the employer on issues relating to the interest of workers. It notes that such a committee is comprised of: (a) a team of representatives appointed for negotiation on behalf of the elected authorized trade union of the enterprise; (b) where an election for the authorized trade union could not be held or the term of the elected authorized trade union has expired, a team of representatives nominated through a mutual agreement of all the unions in the enterprise; or (c) where an authorized trade union or a team of representatives could not be formed, a team of representatives supported with the signatures of more than 60 per cent of the workers working in the enterprise.
Restrictions on the principle of free and voluntary bargaining
- Prohibition or limitation of collective bargaining at a certain level (local, regional, territorial, national; enterprise, industry, sector or general)
- The Labour Act contains special provisions with respect to collective bargaining for trade union associations which are active in the tea estate, carpet sector, construction business, labour provider, transportation sector or any other group of manufacturers or service providers with similar or related activities, which violate the autonomy of the parties and their ability to determine the appropriate level of negotiations. Section 123 of the Act stipulates that those trade union associations may, by forming a collective bargaining committee, submit collective bargaining claims or demands to the employers’ association of concerned group of industries. Section 123(3) provides that in those enterprises it is prohibited to submit collective claims or demands and entering into agreement pursuant to the abovementioned sections of the Chapter on Settlement of Collective Disputes of the Labour Act. In addition, as stipulated in section 123(4), in cases concerning such enterprises, the Ministry may issue an order to submit collective claims or demands and negotiate within a specified time.
- Compulsory conciliation and / or binding arbitration procedure in the event of disputes during collective bargaining, other than in essential services
- As provided for in section 117 of the Labour Act, the Collective Bargaining Committee shall hold consultations on the claims submitted and that, if an agreement is reached, it shall be binding for both parties. For its part, sections 118 and 119(1) provide that, if no agreement is reached and where the dispute is not resolved through mediation, it shall be settled through arbitration as follows: (i) if the parties agree to settle the dispute through arbitration; (ii) if it concerns an enterprise providing essential services; (iii) if it concerns an enterprise located inside the special economic zone; or (iv) if it concerns a situation where strike is prohibited because there is a state of emergency declared as per the Constitution. For its part, section 119(2) also provides that, where the Ministry has a ground to believe that a financial crisis may take place in the country as a result of ongoing or possible strike or lockout or believes that the dispute needs to be settled by arbitration, the Ministry, irrespective of the state of the collective dispute, may issue an order for the settlement of the dispute through arbitration.
Right to strike
Right to strike
The right to strike is recognised by law but strictly regulated.
Barriers to lawful strike actions
- Obligation to observe an excessive quorum or to obtain an excessive majority in a ballot to call a strike
- A strike can be held, but only following a secret ballot of 60% of the union's membership.
- Excessively long prior notice / cooling-off period
- A union must give at least 30 days' notice before going on strike.
Ban or limitations on certain types of strike actions
- Restrictions with respect to the objective of a strike (e.g. industrial disputes, economic and social issues, political, sympathy and solidarity reasons)
- Article 75 (d) Labour Act, 1992: “Restrictions on claims. Notwithstanding the above, demands or claims of the following kind may not be made if they: (d) concern matters which are not connected with the establishment; (…)”
- Restrictions with respect to type of strike action (e.g. pickets, wild-cat, working to rule, sit-down, go-slow)
- Article 51 (g) Labour Act, 1992: “Misconduct. For the purpose of section 50, the following actions of a worker or employee shall be regarded as misconduct: (…) (g) participating in a strike without fulfilling the legal requirements, or wilfully slowing down work so that the interests of the establishment are harmed;(…)”
Undue interference by authorities or employers during the course of a strike
- Authorities’ or employers’’’ power to unilaterally prohibit, limit, suspend or cease a strike action
- The government may stop a strike or suspend a trade union's activities if it disturbs the peace or is deemed to adversely affect the economic interests of the nation.
Undermining of the recourse to strike actions or their effectiveness
- Excessive civil or penal sanctions for workers and unions involved in non-authorised strike actions
- Articles. 4 of the Essential Services Mobilization Act, 2014 (1957): “Penalty for employees that organize, participate in or hold strikes: Under this Act, if any employee organizes, participates in or holds a strike he shall be imprisoned for six months and or fined Rs200. 5. Penalty for incitement: under this Act, any person who induces or incites an employee to organize, participate in or hold a strike during a prohibited period, shall be imprisoned for a year and or fined Rs.1,000. 6. Penalty for providing cash assistance to banned strikes: Under this Act, if any person knowingly provides cash assistance to a banned strike, he will be imprisoned for a year and or fined Rs.1,000. 7. If this Act is inconsistent with other Nepal Laws: Notwithstanding that contained in any other prevailing Nepal laws, a notified order under this Act shall be governed in accordance with this Act and if not otherwise with other prevailing Nepal laws.”
- Other legal provisions undermining the right to strike
- Art. 51 (f), (g) Labour Act, 1992: “ Misconduct. For the purpose of section 50, the following actions of a worker or employee shall be regarded as misconduct: (…) (f) participation or the compulsion of others to participate in a strike which has been declared irregular or illegal; (g) participating in a strike without fulfilling the legal requirements, or wilfully slowing down work so that the interests of the establishment are harmed;(…)” (...) Art. 52 (2), (5) Labour Act, 1992: “ Penalties. (…) (2) The annual increment in the remuneration of a worker or employee who behaves in a manner mentioned under clauses (f), (g), (h) or (i) of section 51 may be withheld. (…) (5) Any worker or employee committing a misconduct mentioned under subsections (1), (2) or (3) after being twice punished for such misconduct, may be dismissed.”
Limitations or ban on strikes in certain sectors
- Discretionary determination or excessively long list of “essential services” in which the right to strike is prohibited or severely restricted
- Legislation denies the right to strike to employees providing essential services. In recent years, the government has used that legislation to ban strikes in many sectors, including banking, telecommunications, electricity, water supply, road, air and sea transport, the print industry, the government, press, and hotels and restaurants.
- Other limitations (e.g. in EPZs)
- A worker in charge of security or surveillance teams in a company is not allowed to start a strike.
In practice
Union leaders from the Nepal Press Union (NPU) and the Federation of Nepali Journalists (FNJ) were among nine journalists arrested on 16 September 2019 as they protested against job losses in Kathmandu.
Journalists were protesting against the sacking of three journalists from Radio Nepal in Doti in August. Radio Nepal is the government-owned radio. The three journalists were sacked without any prior notice or administrative work.
NPU and FNJ were demanding during the protests the reinstatement of the journalists. At 2 p.m., nine union leaders, including Ajaya Babu Shiwakoti, NPU general secretary; Ram Prasad Dhahal, FNJ secretary; Janmadev Jaishi, Yam Birahi, Min Bam - FNJ Central Committee; Dilip Paudel - NPU Central Committee; Chakra Kuwar, NPU Doti branch vice president; Yogendra Balayar, FNJ Doti Branch president; and Prakash Bam, NPU Doti branch president, were arrested. They were detained for three hours and released at 5 p.m.
On 29 January 2019, the management at Global Hydropower Associate called in the police to intimidate workers who were holding a meeting to form a trade union at the workplace. The Construction and Allied Workers’ Union of Nepal (CAWUN), a BWI affiliate, called for the immediate release of the workers taken into police custody, urgent medical assistance for the workers injured and the immediate resumption of work at the plant.
Dozens were injured by the police during a demonstration joined by several thousand people in support of a doctor who had been on hunger strike for almost a month to press for reforms in the health and education sectors. The police reportedly fired multiple rounds of teargas and used batons as the demonstrators approached the parliament in Kathmandu.
Two teachers from Tribhuvan University were injured during scuffles with police on 22 May 2017. Narendra Bhandari, the general secretary of the Nepal Part-Time Teachers’ Association (NPTTA), and Mandira Sayami, a zoology teacher at the Trichandra Campus, were among a group of 175 protesting teachers who had tried to enter a restricted area near the Prime Minister’s residence.
It was the fourth day of a protest staged to press home their demand for the implementation of an agreement signed between the government, the university and the union which should have ensured that part-time teachers were hired on monthly contracts rather than on a daily basis. The agreement had been signed eight years earlier, yet neither the government nor Tribhuvan University had taken any initiatives to address the demands of more than 1,200 part-time teachers, said the NPTTA. They were paid less and taxed more than permanent teachers.
The NPTTA reported that Narendra Bhandari was seriously injured when police used force to prevent the protestors entering the prohibited zone.
Five health workers were injured on 25 January 2017 when police lathi-charged them during a demonstration outside the Parsa District Public Health Office (DPHO) in Birgunj. The health assistants were protesting at the DPHO’s refusal to implement the government’s decision to promote health assistants above a certain grade to the post of chief of health posts. They had been demonstrating for 25 days.
A meeting had been held in presence of Mohammad Daud, director at the Primary Health Care Revitalisation Division under the Department of Health Services, and the DPHO Chief Raj Kishor Pandit had assured the protestors their demands would be addressed that day. However, the police went ahead with what was described as a brutal attack on the protestors, leaving five of them requiring hospital treatment.
Engineers and technicians working on the reconstruction of homes in earthquake-hit districts of Nepal went on strike at the end December after the government refused to address their demands relating to pay and the poor working conditions they faced in the remote districts they had to work in. Rather than negotiate, the government threatened them with legal action if they did not return to work.
The Unilever factory based in Hetauda locked out over 150 workers indefinitely on 7 August 2016, despite having reached an agreement to end a 28-day strike.
Workers began limited strike action on 10 July after management refused to implement an agreement reached on 29 May. The factory workers said they ended the strike after reaching a three-point agreement with management at the District Administration Office. Management claimed, however, that the union was still disrupting production and imposed the lockout.
In most companies, the election of collective bargaining agents is fraught with irregularities. Neither the employers nor the government officials in charge of labour matters take the action needed to ensure respect for the legal procedures. Worker inexperience and employer reluctance are among the many obstacles to the holding of collective negotiations. As a result, less than 10% of formal economy workers exercise their collective bargaining rights.
Despite attacks on their members at the hands of the Maoist All Nepal Federation of Trade Unions (ANFTU), the democratic trade unions, including the Nepal Trade Union Congress – Independent (NTUC-I) and General Federation of Nepalese Trade Unions (GEFONT) decided to hold talks with them in order to reach a consensus on progressive reform of labour legislation. An inter-union Coordination Council was set up, a joint platform of the representatives of seven trade unions, one of whose key tasks is to reduce acts of violence.
In July pressure from the trade union movement and the ILO led to commitments from prominent Nepalese political figures in favour of the ratification of ILO Convention 87 on freedom of association and protection of the right to organise. By the end of 2009 however, Nepal had still not ratified this international standard.